Windsor v. St. Paul, M. & M. Ry. Co.

• Decision Date: 21 February 1905
• Citation: 37 Wash. 156,79 P. 613
• Court: Washington Supreme Court
• Parties: WINDSOR et ux. v. ST. PAUL, M. & M. RY. CO.

79 P. 613

37 Wash. 156

WINDSOR et ux. v. ST. PAUL, M. & M. RY. CO.

Supreme Court of Washington

February 21, 1905

Appeal from Superior Court, Spokane County; Geo. W. Belt, Judge.

Action by James N. Windsor and wife against the St. Paul Minneapolis & Manitoba Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

M. J. Gordon and C. A. Murray, for appellant.

Samuel R. Stern, for respondents.

DUNBAR J.

The complaint alleges, in substance, the ownership of a certain quarter section of land; that appellant, being desirous of acquiring certain additional rights, agreed with respondents to put up suitable gates and fencing, and in consideration of such agreement respondents deeded to appellant seven acres of said land, all upon condition that said property should be properly fenced and proper gates erected so that no damage could ensue to respondents by reason of cattle or horses straying upon said property; that by reason of the failure of appellant to erect said gates and build said fences, cattle and horses were enabled to and did stray upon a portion of respondents' property, and destroyed growing crops and grass growing thereon, to respondents' damage in the sum of $1,250. Appellant answered, denying that it made any such agreement, or that said land was deeded for any consideration other than cash consideration paid by plaintiffs for said land. Judgment was rendered in favor of respondents for $366. It appears that one Des Brisay, the right of way agent for appellant, had for a term of some two years been trying to negotiate with respondents for the additional right of way which was finally obtained, but they reached no agreement. Afterwards, according to the testimony of the respondents, Des Brisay sent one Hirst, who was an employé of the railroad company in some capacity, to respondents, to see if the deal could not be consummated. Respondents entered into a contract in writing with Hirst, presuming him to be the agent of the company. This contract was signed, $1 paid by Hirst to bind the contract, and the deed was afterwards made in pursuance of the condition of the contract. According to the testimony of the respondent, James N. Windsor, he had at all times when the matter was spoken of insisted that he would not sell the land unless the railroad company would put in guards and fences to preserve the crops. Several propositions had passed between the agent and Windsor prior to the time the contract was finally entered into. The contract was finally made without any reservation or any provision in reference to the building of fences by the company, but testimony was introduced showing that there was a collateral oral agreement to the effect that the fences and the guards were to be built and maintained by the company. In fact, there was pinned to the agreement, which was brought there by Hirst through the direction of Des Brisay, a statement from Des Brisay that, if Windsor would sign the agreement, the railroad company would build the fences and guards as Windsor had previously demandand According to the testimony of Windsor and other members of his family this attached statement was lost, and it was not produced at the trial. The testimony of Des Brisay was to the effect that in such appended agreement he did not agree to build the fences, but only agreed to put a crossing in on the land where Windsor had previously asserted that he wanted it placed, and that the agreement said nothing about fencing the land. It is also testified by the respondents and other witnesses that Mr. Hirst represented to Windsor that, if he signed the contract, the fencing would be made by the company according to his desires, whereupon Windsor called several persons forward as witnesses, stating that he signed the contract on the condition that the land deeded was to be fenced by the railroad company. Mr. Hirst does not deny this but he says that he simply told Mr. Windsor that the company was fencing all its lands as fast as it could, and he had no doubt that it would fence this particular land; and further than that he had no authority to speak. On all these questions of fact as to what the agreement actually contained, as to what Mr. Hirst and Mr. Windsor respectively said at the time the contract was entered into the jury have passed, and we will not discuss them further.

It is contended, however, by the appellant--and that is the main contention in this case--that its objection to the testimony in relation to the oral agreement which was made by the appellant ought to have been sustained by the court, and that the court erred in not sustaining it. It is true beyond dispute that the general rule is that the terms of a written agreement cannot be contradicted or varied by oral testimony. This is upon the theory that all the propositions which have been discussed pro and con between the parties to the contract have been finally merged in the written agreement and it becomes the express mutual contract of the parties; and this rule is salutary for the purpose of giving stability and credibility to written contracts. It is also true that, where the written contract undertakes to express all the conditions surrounding the transaction with reference to which the parties are contracting, oral testimony in regard to those transactions is inadmissible. But it is equally well established that matters which are independent of the contract may be proven by oral testimony. The trouble in each particular case is to determine whether the case falls within the general rule or within the exceptions to it. The appellant in this instance relies largely upon the decision of this court in Gordon v. Parke & Lacy Mach. Co., 10 Wash. 18, 38 P. 755, where it was held that a written contract which enters minutely into the details of the agreement between the parties indicates on its face that all its terms have been reduced to writing, and it cannot be added to or varied by parol proof of agreements that are in no wise collateral to or independent or its subject-matter. In that case there was a sale of goods made in writing, and an oral contract between the parties to the effect that, in consideration of such contract of sale, the seller would not engage in the same business in the same city, and it was held that that was not such a collateral undertaking as to permit parol proof thereof in explanation of the written contract. But the court said: 'Now, the contract here to be considered...